4.2 Joinder, Severance, Amendment & Voluntary Bills

4.2 Joinder, Severance, Amendment & Voluntary Bills

The indictment fixes the shape of the trial. Joinder decides what the jury hears together; severance decides what it hears apart; amendment decides how far the document can be repaired once the trial has begun.

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1. Joinder of counts

The old free-standing rule of joinder in the Indictment Rules has gone. The modern architecture is two-part:

1. What may go in. Rule 10.2(4) permits counts substantially the same as those sent, counts served with a High Court judge's permission or at the direction of the Court of Appeal, and any other count the Crown Court can try which is based on the served evidence.
2. What must be tried together. CrimPR r.3.29 governs applications for joint or separate trials. Under r.3.29(4) the court may order separate trials of counts where the defendant "may be prejudiced or embarrassed in his or her defence" — the rule gives as its example the case where "the offences to be tried together are neither founded on the same facts nor form or are part of a series of offences of the same or a similar character" — or where for any other reason it is desirable to do so.

The familiar test therefore survives, but as the measure of prejudice rather than as a rule of validity. Counts are properly tried together where they are:

• Founded on the same facts — arising out of the same incident or so closely connected that the evidence of one is substantially the evidence of the other (a robbery and the possession of the weapon used in it); or
• Part of a series of offences of the same or a similar character — requiring a nexus between them, in law and in fact, not merely a shared offence label (Ludlow v Metropolitan Police Commissioner). Two burglaries of neighbouring houses on the same night form a series; two burglaries five years apart in different counties may not.

Misjoinder. Where counts are joined that should not have been, the modern consequence is not automatic nullity but an application under r.3.29 for separate trials, and on appeal the question is the safety of the conviction.

Applications under rule 3.29

An application must be in writing, made as soon as practicable and in any event before the trial begins, served on the court officer and every other party, and must specify the order sought and why it should be made. A party who wants to oppose has 10 business days to serve representations.

Severance of sexual counts. Where several complainants allege sexual offences, the defence frequently seeks severance. The court asks whether the evidence on each count would be cross-admissible on the others (usually through the bad character gateways in s.101(1)(d) CJA 2003). If it would, a single trial is generally right; if it would not, the risk of prejudice may require severance — but even then a clear direction to consider each count separately will often suffice.

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2. Joinder of accused

There is no rule limiting an indictment to one defendant. Two or more accused may be charged:

• In a single count as parties to the same offence — principals and secondary parties need not be distinguished on the face of the indictment; or
• In separate counts for the same or different offences, where the interests of justice favour a single trial (Assim).

The strong presumption is a joint trial where the allegations arise from the same events. It saves witnesses from testifying twice, avoids inconsistent verdicts, and lets the jury see the whole picture. Severance of defendants is exceptional. Neither of the two most commonly advanced grounds is usually enough on its own:

• A "cut-throat" defence, where each accused blames the other, is a reason for a joint trial, not against it — the jury needs to hear both accounts;
• Evidence admissible against one accused only (a confession, or bad character) is normally managed by a direction to the jury that it is evidence against that defendant alone.

Severance is more likely where the disparity in the strength of the evidence is extreme, where a defendant would otherwise be unable to adduce evidence essential to their defence, or where one defendant's ill health would cause serious delay to another.

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3. Amendment

Section 5(1) of the Indictments Act 1915: where the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless the required amendment cannot be made without injustice.

The power is wide:

• It may be exercised at any stage of the trial before verdict, though the later the application the more likely injustice becomes;
• It extends to correcting particulars, substituting a different offence, and even adding a new count, provided the new count is supported by evidence that was before the examining court or has been served;
• The touchstone is always injustice to the defendant, which is assessed by asking whether the defence would have been conducted differently. An adjournment, or the recall of a witness, will often cure prejudice.

Where a count is added by amendment, the defendant must be arraigned on it.

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4. Voluntary bills of indictment

A voluntary bill allows the Crown to place a defendant on trial without a sending. It requires the permission of a High Court judge, given on written application supported by the evidence and a statement of why the ordinary procedure is inappropriate; the defendant is normally given notice and an opportunity to make written representations. It is an exceptional procedure. Its recognised uses are:

• Where a judge has wrongly dismissed charges after sending, and the Crown wishes to proceed;
• Where the sending was defective or the case was not sent at all; and
• Where a new defendant needs to be added to an existing indictment shortly before trial.

The syllabus limits the requirement to knowing that the procedure exists and the circumstances in which it is appropriate — so do not spend revision time on the detail of the application.

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Exam traps in this section

• Joinder is now tested through r.3.29(4) prejudice, not through a rule of validity; misjoinder is not automatic nullity.
• A "series" needs a nexus in law and fact, not merely the same offence label (Ludlow).
• A cut-throat defence favours a joint trial.
• Amendment is available at any stage before verdict; the only bar is injustice.
• A voluntary bill needs a High Court judge, not a Crown Court judge.